What is contested divorce?
A contested divorce is a divorce in which the spouses disagree on some or all issues of property division, debt allocation, child custody, child support, spousal support.
Unlike an uncontested divorce, a contested divorce might involve your appearance in court.
What are the possibilities to avoid a court appearance in a contested divorce?
It is possible to avoid court appearance and judge’s involvement by Alternative Dispute Resolution such as a collaborative divorce or mediation. In collaborative divorce spouses with their attorneys
will have a chance to settle divorce issues themselves instead of letting the judge decide what is in the best interest of your children or what is the best way to divide your property.
Mediation is another way to come into mutual agreement without court involvement. In mediation, a neutral party will guide the spouses to find a mutually beneficial solution of their contested divorce issues. If your disputed issue is child custody, it is mandatory that you attend mediation. Participation in the mandatory mediation is required, and a party who refuses to participate may not heard by the court on the custody or visitation issues.
If you and your partner cannot come into an agreement using Alternative Dispute Resolution, you will probably need to hire an attorney to take care of your divorce paperwork and represent you in court. It is especially important to be represented if your spouse has an attorney because it would be difficult for you to defend your position without knowing the procedural and substantive law as well as the rule of evidence in court.
Attorneys will generally require a retainer agreement as a down payment to represent you. If you are uncomfortable with paying a retainer agreement, you can proceed Pro Per (self-represented) and hire an attorney to represent you at the hearings and the trial only. There are some variety of ways to proceed to make your divorce efficient and cost effective.
Some parts of your contested divorce process
Contested divorce process is much more complex and long in duration. Although the starting point of the divorce is the same as for uncontested, the further steps in the proceeding varies depending on the parties needs and issues been contested.
For example, you might find yourself in need of temporary child or temporary spousal support to be able to pay your bills while the divorce is pending. In this case you will need to do request for order (for temporary child or temporary spousal support). You will be set with the day and time for a hearing to ask the court to award you such support.
In a contested divorce, you will most likely need to do a discovery (asking other party to for the information). Discovery usually takes place in the form of oral deposition, interrogatories, request for admission or request for production of documents. We will not go in depth much about a deposition, but the main point about it is that it can be very expensive and time consuming. Gathering information quickly can be important at different stages of the divorce process. Under CCP §2030.020(b), the petitioner must wait 10 days after service of the summons in a case or the respondent’s appearance before propounding interrogatories; demands for inspection, copying, testing, or sampling; and requests for, and the petitioner must wait at least 20 days before serving a deposition notice.
The respondent may serve a deposition notice at any time after service or appearance, whichever occurs first. The respondent may commence other discovery proceedings at any time.
The most important part of your contested divorce process in a trial. The spouses’ attorneys will submit evidence, offer witnesses testimony for the judge to decide on the contested issues. Sometimes the trial might continue next day, depending on the judge availability and priorities of other cases. When the final decision will be made, it become the part of your divorce judgment and you need to follow the court order unless the circumstances will be change in the future.
A contested divorce is indeed a challenging phase for any couple, as it involves disagreements over key aspects of the dissolution of their marriage. To avoid a court appearance, parties can seek resolutions through the methods previously described, including collaborative divorce and mediation. These approaches allow couples to work through their differences outside of the courtroom, often saving time, reducing stress, and potentially leading to better outcomes for both parties.
Another possibility to resolve disputes without needing a court appearance is through a settlement conference, which is a formal meeting where both sides present their positions before a judge or a neutral third party in an attempt to reach an agreement. Sometimes, these conferences are court-ordered while at other times, they may be initiated by either party.
Additionally, attorney negotiations play a crucial role in contested divorces. Often, lawyers for both sides will negotiate extensively to reach an agreement on behalf of their clients without the need to go to court. If they can settle all issues through negotiation, they may draft a settlement agreement to be signed by both parties and then submitted to the court for approval, thereby avoiding a court appearance.
Moreover, some jurisdictions have special programs or court services aimed at helping spouses resolve specific contested issues, especially those related to children, such as custody evaluations, parent education classes, or a parenting coordinator who can help make decisions pertaining to children in contentious cases.
It’s worth noting that even if alternative dispute resolution methods are successful, some form of court interaction is usually still required to finalize the divorce. This might be a simple procedural appearance to submit the reached agreement for court approval or a more formal one if some issues are left unresolved and need judicial determination.
In cases where couples cannot agree, they will proceed to trial where the court will make decisions on their behalf. This is the most adversarial process in a contested divorce and can be very time-consuming and costly, as it involves meticulous preparation, presentation of evidence, examination of witnesses, and lengthy legal arguments.
Once the trial concludes and the judge makes a decision, it’s documented in the final divorce decree. If one or both parties are unhappy with the judgment, they may seek post-trial relief such as filing a motion for a new trial or appealing the decision to a higher court, both of which can prolong the divorce process even further.
During all stages of a contested divorce, it is highly advisable to have the guidance of an experienced family law attorney to navigate the complexities of the legal system and to protect one’s rights and interests.
